Do You Need to Provide a Good Faith Estimate for a Botox Treatment?

I've talked about the No Surprises Act (NSA) in the pages of this journal before.¹ After the initial implementation of the NSA in January 2022, there was controversy in aesthetic circles as to whether this trojan horse of health care legislation even applied to aesthetic services or just to uninsured (self-pay) individuals getting medically necessary, but elective, services. The verdict appears to be that aesthetic services are included.

THE NO SURPRISES ACT

In December 2020, Congress passed the No Surprises Act² as part of a larger COVID relief package. It went into effect on January 1, 2022. The No Surprises Act had one overarching goal: to reduce the occurrence of surprise bills after a medical service or procedure. It does this in three broad ways:

1. Reducing surprise bills when patients are using insurance in emergency situations.

2. Reducing surprise bills when patients utilize out-of-network benefits in non-emergent scenarios by providing the patient with a preoperative estimate and obtaining their signed consent to balance bill.

3. Reducing surprise bills when patients are not using insurance because they are uninsured (self-pay) and provide the patient with a Good Faith Estimate³ of their expected out of pocket expenses.

The Act and subsequent regulations issued by CMS never explicitly stated that aesthetics came under the purview of the NSA; they never excluded it, either. I don’t believe aesthetics was on the radar of Congress or CMS when designing the law and regulations.

THE GOOD FAITH ESTIMATE (GFE)

CMS has issued several clarifications of the NSA and GFE. In those clarifications, they have not taken the opportunity to exempt aesthetics. So if aesthetic providers are subject to the law, but the law doesn’t delineate when it applies to aesthetics, how do we know when we need to provide a Good Faith Estimate to our patients?

The GFE requires the provider to give the patient a written/typed estimate that includes the patient demographics, provider’s EIN and NPI number, CPT code (if one exists for the procedure), and an ICD-10 code. The estimate must also include all reasonably expected costs associated with the procedure and a disclaimer, written by CMS, that says the patient can launch a dispute against the provider if a post-procedure bill arrives that’s $400 greater than the GFE.

Based on an update from CMS on April 5,⁴ we can extrapolate when a Good Faith Estimate is needed. The general rule seems to be that a GFE is required if there are: 1.) multiple providers providing a service or 2.) multiple sessions.

MULTIPLE PROVIDERS

If a procedure is scheduled in an in-office operating room, ASC, or hospital and the patient is paying out of pocket, then a GFE is needed. And because multiple providers will perform the services, the estimate must include all constituent fees. For example, if performing a breast augmentation at an ASC, then the “multiple providers” include the surgeon, anesthesiologist, surgery center fees, and all other reasonably expected costs, such as the implants and postop garments.

This could also apply to Mohs surgery. If the patient is paying cash for the dermatologist’s excision, reconstruction, and pathological evaluation, they would need a Good Faith Estimate with all of those reasonably expected fees.

MULTIPLE SESSIONS

So do we need to give a patient a Good Faith Estimate if they’re coming in for filler or neuromodulator? According to the April 5 update, the answer appears to be no.

In the example provided by CMS, “if an individual arrives to schedule same-day laboratory testing services, the laboratory testing provider or facility is not required to provide the individual with a GFE.“ This suggests that if someone comes in for a “one off” appointment for an injection, a GFE is not required.

The need for a GFE is however triggered if there are previously scheduled recurring items or services. The example provided is for “periodic counseling services or physical therapy services.”

In the case of an aesthetic practice or med spa, it seems reasonable that if a patient is scheduled for multiple sessions as a package, membership, or subscription (i.e., laser hair removal, microneedling), a Good Faith Estimate is required. CMS goes on to clarify that a GFE is not needed before each individual treatment but can cover all expected treatments for a period of 12 months. After that, a new GFE is needed for each additional year.

Not Worth the Risk

While the regulations don’t mention aesthetics, the spirit of the NSA is clearly to reduce surprise bills by making pricing information available ahead of time. But if you’re not convinced the NSA applies to aesthetics, do so at your own risk. The penalty for each violation is $10,000!

For additional information on compliance with the No Surprises Act, visit NoSurprisesAct.com

1. https://modernaesthetics.com/articles/2022-mar-apr/does-the-no-surprises-act-apply-to-aesthetic-services-1?c4src=search:feed

2. https://nosurprisesact.com

3. https://www.cms.gov/CCIIO/Resources/Regulations-and-Guidance/Downloads/Guidance-Good-Faith-Estimate-Patient-Provider-Dispute-Resolution-Process-for-Providers-Facilities-CMS-9908-IFC.pdf

4. https://www.buildmybod.com/blog/cms-faqs-about-consolidated-appropriations-act-2021-implementation-good-faith-estimates-gfe-for-uninsured-or-self-pay-individuals-part-2/

5. www.buildmyhealth.co

6. https://www.newsweek.com/winning-victory-cost-transparency-health-care-opinion-1687849

7. https://modernaesthetics.com/search?q=Jonathan+kaplan

8. https://medcitynews.com/category/medcity-influencers

9. https://www.medicaleconomics.com/search?searchTerm=Jonathan%20kaplan